WARNING: DISTRESSING CONTENT
When Sarah Rosenberg visited her school counsellor over playground “mean-girl” bullying, she could never have predicted that almost a decade later, the man charged with raping and choking her would be able to access those confidential school counselling notes.
In 2019, at age 23, Sarah met Joshua* on the Bumble meeting app, and the pair began dating. In October that year, after a trip to Sydney’s Noodle markets, the couple went back to Joshua’s place.
“We’d had consensual sex in the past, but I wasn’t feeling well and told him I didn’t want sex that night,” Sarah, now 29, told news.com.au.
According to the 27-page police statement which followed, Joshua flatly ignored Sarah’s wishes and forcefully raped her.
“I screamed at him and told him to stop. I tried to pull myself away, and I started kicking my legs,” she says.
“It made it worse. He reached up and put his hands around my throat.”
Sarah says she wants people to know the graphic details of what followed as she does not want to sanitise the ordeal.
“He was using my throat as leverage while thrusting into me. He was saying all these awful things,” she says.
“I couldn’t breathe. It was violent. I was terrified.
“When he finished he let go of me, and I just crumbled. I pulled my legs around to get ready to kick him if he came back.
“He grabbed a towel from the hook on the door and threw it at me, and said ‘I’m going to take a shower’.
“The entire room was spinning. I was numb and in shock, and so fearful that he was going to come back.
“And then something clicked, and I stood up and I grabbed everything of mine in the room that I could see and bolted.”
Alone in her car, Sarah broke down crying.
Then her phone began to beep.
Phone records sighted by news.com.au show that at 12.49am on October 19, Joshua texted:
HIM: I want to know you are okay
HIM: I’m sorry
HIM: Let me know you get home safe
HIM: I’m worried
At 12.56am Sarah responded:
SARAH: Of course I’m not f**king okay
“At that moment I obviously knew how serious this was. I knew, or else I wouldn’t have screamed, and fled, and been in such a state of fear. But once I was out of danger, I started downplaying my emotions,” she says.
“I tried to rationalise it, that he must have had some kind of ‘brain snap’ as it was so out of character. He seemed like this really respectful guy who I thought adored me. And he had just done something horrific, unforgettable and unforgivable. It didn’t make sense.”
By then, Joshua was already apologising via text.
Tuesday 9.37pm:
HIM: I’ve done something terrible to you and you are battling with it
HIM: I love you and I want to help you through this
HIM: I don’t know how to help
SARAH: F**k that
SARAH: Where is your accountability
SARAH: I’m aware it was out of character and I hope it is so far from what you actually are but whatever part of you did it, is still you
SARAH: and it needs to be fixed
HIM: Okay I will get help
HIM: And talk to someone about it
HIM: It’s not me
HIM: But it happened, so it’s something
SARAH: I’m angry on so many levels
HIM: But you didn’t do anything. It was me.
HIM: I knew I wanted to marry you the moment I met you
HIM: But I did something horrible to you
SARAH: You took away my agency
After disclosing the rape to her mum Julie Rosenberg and visiting Family Planning, Sarah decided to report to police. She also visited a psychologist and psychiatrist to help her cope.
Months later, in 2020, Joshua was arrested and charged with six counts – including “intentional choking without consent”, “intentional suffocation without consent” and “sexual intercourse without consent”.
If found guilty, he could have faced up to 44 years in jail.
Then something staggering happened.
“I received a phone call from a doctor I hadn’t seen in years,” says Sarah.
“She was in a panic. She told me she had received a subpoena for all my files in connection with a rape trial and she was looking to me for answers which I did not have.”
Sarah had no idea that Joshua’s legal team had accessed a complete list of every doctor, counsellor, psychologist and psychiatrist she had ever visited and had sent a scattergun of emails, fishing for information about Sarah.
“I was so confused, overwhelmed and gobsmacked. I had no understanding of the system and couldn’t fathom what was going on,” she says.
Sarah contacted the DPP “to seek clarification”, and she was directed to Legal Aid NSW.
But by then, it was too late. Many of the medical and counselling services which had been subpoenaed had already complied, handing over highly personal information to the man Sarah feared most.
“The thing about privacy is that once it’s violated, that can’t be restored,” says Sarah.
Sarah soon learned that the defence team had accessed thousands of pages of her confidential medical and counselling notes, going all the way back to the high school counsellor she had visited almost a decade earlier following schoolyard bullying.
Later, that material would be shared with a courtroom full of strangers.
“There was no consent at all. I never agreed to any of it. It was a total free-for-all, and it felt sinister,” she says.
Even worse, a lawyer then informed Sarah that one of Joshua’s young relatives had accessed the brief of evidence and, at an eastern suburbs party attended by mutual friends of Sarah’s, this relative had read out confidential details of the brief for laughs.
“They’d waved my police statement around like it was a joke or some kind of trophy,” Sarah says.
It was now 2022. Sarah had already been waiting years for justice, since first reporting to police in 2019.
By then, she had been cycled through three police stations, five detectives, three DPP solicitors, two crown solicitors and three witness assistance officers.
She was barely surviving.
“I just felt totally alone,” says Sarah.
“I never even met the second witness assistance officer, she just called to say ‘I am no longer your WAS Officer’. The third one was meant to show me around the court. She forgot the key and I never saw her again.”
As the trial approached, Sarah was informed by Legal Aid NSW that because her medical and counselling notes were obtained without Sarah having the opportunity to be heard on the issue, Legal Aid NSW could fight on her behalf to try to keep the material out of the trial.
But that would cause further delays.
Sarah’s mother, who is a lawyer in her own right, stepped in as she did not think Sarah’s mental health would survive any more delays.
“I told the prosecution ‘your victim will be dead … she won’t be here’,” says Julie Rosenberg.
“We as a family were holding her together just, we had her on suicide watch … so we told them to concede and just let the [medical and counselling] records go in.
“It was an absolute nightmare. At that time you’re just like ‘tiger mum’ and you’re doing absolutely everything you possibly can … because by then the outcome had become irrelevant [to me]. I was like, if she’s alive, we can at least come up with another way of her healing, because this legal process wasn’t it.”
Initially, Sarah had no notion of how her counselling and medical notes could be used against her at trial, and in her legal naivety, she thought they might even assist her.
“They show how physically vulnerable I was,” she says.
But in front of the jury, the information played out very differently.
“The fact I’d been to a psychologist and a psychiatrist was used to suggest I was mentally unstable and unwell, and therefore unreliable,” she says.
“It didn’t matter what was in the notes, the very fact I sought help was used to discredit me, by playing into age-old stereotypes around mental health, crazy women and hysteria.
“I had no idea they could twist the information like that.
“They utilised outdated stigma around therapy to suggest my memories of rape could not be trusted.”
Sarah also suffers from Myalgic Encephalomyelitis – an illness which causes fatigue, joint pain and brain fog.
“Brain fog simply means I sometimes can’t think of the word I want to use, or I pull the wrong word,” explains Sarah.
“There is a huge difference between forgetting a word or struggling to concentrate, and making up heinous events,” she says.
This was not the only credibility attack.
At trial, Sarah was asked over 2000 questions, including questions about her sexual preferences, questions about what she was wearing on the night of the attack, and even questions about why she would visit the beach and wear a two-piece bikini (as opposed to a one-piece swimsuit) in the aftermath.
“I don’t own a one-piece,” says Sarah.
“The beach is my happy place so of course I went there. But I don’t understand how any of that was relevant.”
By then, Joshua had admitted to choking Sarah and holding a pillow over her face. He claimed he thought she would enjoy being smothered.
He did not deny intercourse took place, but claimed he thought it was consensual. He offered to plead guilty to two counts – ‘intentional choking without consent’ and ‘intentional suffocation without consent’.
Under that plea put forward by Joshua’s lawyers, he could have faced up to seven and a half years in jail.
But the DPP had declined the plea deal, forcing the issue to go to trial.
When the jury came back, Sarah and Julie were not in the courtroom to hear the verdict read out.
They already knew the result.
“The verdict was not guilty on all six counts and it had to be, given how the trial had played out,” says Sarah.
“The jury had nowhere to go.”
After the verdict, Joshua celebrated with a party.
It was a devastating blow and one Sarah is still struggling to come to terms with.
Sarah is joining news.com.au’s #KeepCounsellingConfidential campaign. She wants the public and the NSW Attorney-General, Michael Daley, to know that the legislative safeguards currently in place to protect the privacy of sexual assault complainants are not working in practice as intended.
“It’s counselling 101 that you are told the information you share is private. But that can be instantly overturned without your knowledge and that’s devastating. The imbalance of power is staggering, and the breadth of the terrain over which defence lawyers can roam is astounding. It’s a total free-for-all,” she says.
Sarah says she also wants the public to understand the long-term implications for victims and survivors of such privacy breaches.
“After my files were subpoenaed, the foundation to feel mistrust was seeded … I didn’t see [my doctors] for months afterwards,” she says.
“We are making people choose between justice and privacy.
“It is a complete and utter violation. It’s obviously devastating and it’s got huge ramifications for help seeking in the future.
“If you are sick you go to the doctor. If you are struggling you are told to go to a therapist. That’s the responsible thing to do. The thing our society tells you to do. The fact you did that is a good thing. It should never be used to discredit you.”
The Keep Counselling Confidential campaign was launched last month, after Jessica Denham’s sexual assault counselling notes were shared with the pedophiles who raped her, and later, used in a podcast without her consent.
More than 8000 people have signed a petition to support the campaign and a Freedom of Information investigation by news.com.au has shown that on average, 1800 RESPECT receives a subpoena once a week, every week. The investigation also showed that the service is not only handing over counselling notes, but audio and video recordings of counselling sessions.
Sarah says she hopes the law is reformed so that victims and survivors are not forced to choose between privacy and justice.
“People who need help, need help.”
Sign the petition here:
Nina Funnell is a Walkley Award-winning investigative journalist.
*Joshua is a pseudonym
